48 C.F.R. § 37.103

37.103 Contracting officer responsibility.

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(a) The contracting officer is responsible for ensuring that a proposed contract for services is proper. For this purpose the contracting officer shall—

(1) Determine whether the proposed service is for a personal or nonpersonal services contract using the definitions at 2.101 and 37.101 and the guidelines in 37.104;

(2) In doubtful cases, obtain the review of legal counsel; and

(3) Document the file (except as provided in paragraph (b) below) with

(i) the opinion of legal counsel, if any,

(ii) a memorandum of the facts and rationale supporting the conclusion that the contract does not violate the provisions in 37.104(b), and

(iii) any further documentation that the contracting agency may require.

(b) Nonpersonal services contracts are exempt from the requirements of subparagraph (a)(3) above.

(c) Ensure that performance-based acquisition methods are used to the maximum extent practicable when acquiring services.

(d) Ensure that contracts for child care services include requirements for criminal history background checks on employees who will perform child care services under the contract in accordance with 34 U.S.C. 20351 and agency procedures.

(e) Ensure that service contractor reporting requirements are met in accordance with subpart 4.17, Service Contracts Inventory.

[48 FR 42365, Sept. 19, 1983, as amended at 55 FR 36796, Sept. 6, 1990; 59 FR 67051, Dec. 28, 1994; 62 FR 233, Jan. 2, 1997; 62 FR 44815, Aug. 22, 1997; 62 FR 51379, Oct. 1, 1997; 66 FR 2133, Jan. 10, 2001; 71 FR 218, Jan. 3, 2006; 78 FR 80375, Dec. 31, 2013; 86 FR 3687, Jan. 14, 2021]

Notes of Decisions

Cited in 2 cases, 1993–2011 · leading case: Tech Sys., Inc. v. United States, 98 Fed. Cl. 228 (Fed. Cl. 2011).

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Tech Sys., Inc. v. United States, 98 Fed. Cl. 228 (Fed. Cl. 2011). “The FAR requires the documentation of the non-personal services finding, 48 C.F.R. § 37.103 (a)(3)(ii), and provides that performance-based contracting is “the preferred method for acquiring services.”

Phillip Layton v. United States of Am., Reba J. Richardson, Adm'x of the Est. of Ronnie Richardson, Deceased v. United States, 984 F.2d 1496 (8th Cir. 1993). “48 C.F.R. § 37.103 (a) (1991) (“The contracting officer is responsible for ensuring that a proposed contract for services is proper.”

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